The New Energy Tech Consumer Code

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In 2017 a Behind the Meter Working Group was established to draft a Code of Practice for the industry in relation to behind the meter products, now known as the New Energy Tech Consumer Code. The New Energy Tech Consumer Code will be a voluntary code but is likely to provide an advantage to signatories as consumers may perceive that signatories uphold better business practices and offer greater consumer protections than non-signatories.

The New Energy Tech Consumer Code sets a minimum standard of customer service for consumers (residential and small business) looking to purchase behind the meter products. The Consumer Code covers the whole ‘customer lifecycle’ and sets out a number of commitments at each stage i.e. quoting, contracting, and operating.

The Australian Competition and Consumer Commission (ACCC) published its draft determination on 1 August 2019. A number of submissions on the draft code were considered by the ACCC including submissions from consumer law advocacy centres, solar companies, energy ombudsman schemes, energy retailers, and individuals.

New energy tech products are defined to include solar panels, energy storage systems and other emerging products and services. For the purposes of the Code, relevant products, systems and services will be those that are small-scale and that generate, store or trade energy away from Australia’s main transmission and distribution energy networks or as distributed energy resources connected to an energy network. Also regulated will be services that support or are closely related to those products or systems, that monitor or manage a customer’s usage of energy whether on or off an energy network, or that the Code Administrator is satisfied it sits, apparently, within the Code. The definition in section 2.1 of the determination is broad and, in some ways, ambiguous.

The definitions and terms used in the Code do not align to definitions or terms found within National Energy Retail Law. It is unclear what the term ‘on or off an energy network’ means and whether this is the same as a ‘away from Australia’s main transmission and distribution energy networks.’ The Code is not intended to include ‘simple, low-cost or off-the-shelf new energy tech, such as might be purchased from a white goods or hardware store for self-installation.’ Again, this would be open to interpretation. The examples given of ‘new energy tech’ include: a power purchase agreement, an electric vehicle charging service, and a microgrid. The Code definitions are not intended to be exhaustive, reflective of the fact that this space changes quickly and in unexpected ways.

Signatories to the Code agree to abide by minimum standards of good practice which are intended to cover all aspects of the consumer experience. The Code Administrator has powers to monitor and sanction non-compliance including to propose to the Code Monitoring and Compliance Panel that, in the case of serious non-compliance, a signatory should be suspended or expelled. Signatories to the Code will only be able to offer deferred payment arrangements that are regulated under the National Consumer Credit Protection Act and the National Credit Code and provided by credit providers licensed under the National Consumer Credit Protection Act.

Signatories to the Code agree to make a number of commitments. These include that signatories will:

  • use language that is accessible and that avoids jargon.
  • ensure that any claims relating to performance or energy cost savings are reasonably based and where available, based on reputable sources.
  • advertise the total cost price as predominantly as any component price.
  • ensure that any disclaimers are clearly outlined and not buried in small print.
  • be clear about when any additional costs for finance or an alternative purchasing arrangement when the cost is being recovered in the overall price.
  • educate consumers of their rights i.e. that consumers can ask a salesperson to leave or end the contact at any time.
  • provide a Consumer Information Product that explains the consumer protection framework;
  • make various disclosures including about how the new energy tech operates and how to operate it.

The ACCC, in its draft determination, notes that the adoption of the Consumer Code is likely to result in greater consumer protections, i.e. in addition to those provided under existing consumer law.

The ACCC considers that the commitments made by signatories under the Consumer Code are likely to result in public benefits by providing protections to reduce the likelihood and degree of consumer harm that can arise from the kinds of practices sought to be addressed by the relevant provisions.

Interested parties are invited to make a submission on the draft determination by 23 August 2019.

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